Citation NR: 9742219
Decision Date: 12/22/97 Archive Date: 12/30/97
DOCKET NO. 93-22 052 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to an increased rating for service-connected
chronic urticaria, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D.P. Havelka, Associate Counsel
INTRODUCTION
The veteran’s active military service extended from March
1956 to January 1958.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois. That rating decision denied service
connection for bilateral hearing loss and allergies.
Subsequently, an April 1997 rating decision granted service
connection for chronic urticaria, and assigned a 10 percent
disability rating effective August 1992.
In September 1993, a hearing was held before Bettina S.
Callaway, who is the Board member making this decision and
who was designated by the Chairman to conduct that hearing,
pursuant to 38 U.S.C.A. § 7102(b) (West 1991).
The case was previously before the Board in October 1995,
when it was remanded for examination of the veteran and
medical opinions. The requested development has been
completed. The Board now proceeds with its review of the
appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in denying
service connection for hearing loss. He argues that he had
hearing loss during active service. He avers that his
current hearing loss was incurred during service.
The veteran also contends that the RO committed error in
denying an increased rating for urticaria. He argues that he
warrants a disability rating in excess of 10 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for bilateral hearing loss is well
grounded. It is also the decision of the Board that the
preponderance of the evidence is against an increased rating
for urticaria.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran’s appeal.
2. There is no competent medical evidence of hearing loss
during service.
3. There is no post service evidence showing continuity of
symptomatology associated with the veteran’s hearing loss.
4. The earliest medical reports dealing with any hearing
loss disability are dated over three decades after service
and do not relate the hearing loss to the veteran’s active
service.
5. There is no medical opinion, or other competent evidence,
linking hearing loss to the veteran’s active military
service.
6. Hearing loss was not manifested during service or within
the first post service year.
7. The veteran has not presented competent evidence of a
nexus between the his current hearing loss and his active
military service.
8. The veteran’s service-connected urticaria is manifested
by swelling of the hands approximately less than one per
month; a skin rash on his face, chest, and back approximately
every one to two weeks; and occasional episodes of breathing
difficulty.
CONCLUSION OF LAW
1. The appellant has not presented a well grounded claim for
service connection for bilateral hearing loss, and therefore
there is no statutory duty to assist the appellant in
developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b)
(1996).
2. The criteria for a rating in excess of 10 percent for
urticaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code
7806 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Hearing Loss
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1131 (West 1991);
38 C.F.R. §§ 3.303, 3.304 (1996). Sensorineural hearing loss
may be presumed to have been incurred during active military
service if it is manifest to a degree of 10 percent within
the first year following active service. 38 U.S.C.A.
§§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1996).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
In this case, the determinative issues presented by the claim
are (1) whether the veteran had hearing loss during service;
(2) whether he has any current hearing loss; and, if so, (3)
whether this current disability is etiologically related to
active service. The Board concludes that medical evidence is
needed to lend plausible support for all of the issues
presented by this case because they involve questions of
medical fact requiring medical knowledge or training for
their resolution. Caluza v. Brown, 7 Vet. App. 498, 506
(1995); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
The veteran’s service medical records appear to be complete.
They contain entrance and separation examination reports
along with treatment records spanning the intervening period
of time. The service medical records reveal no complaints,
or diagnosis, hearing loss during active service. On his
January 1958 separation examination report the veteran’s ears
and ear drums were evaluated as normal with no abnormalities
noted by the examining physician. The veteran’s hearing was
evaluated as normal bilaterally, 15/15, by both whispered
voice testing and spoken voice testing.
In October 1992, a VA audiological evaluation was conducted.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
50
65
LEFT
15
20
55
60
Speech audiometry revealed speech recognition ability of 100
percent in both ears. During the examination the veteran
complained of “gradual onset hearing loss for ‘many years’.
Veteran could not relate any specific circumstance of onset.
Veteran denied tinnitus . . . reported exposure to small arms
fire on the rifle range and occupational noise exposure
(construction).” The diagnosis was bilateral sensorineural
hearing loss.
Impaired hearing is considered a disability for VA purposes
when: the auditory threshold in any of the frequencies 500,
1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R.
§ 3.385 (1996). Therefore, the evidence of the 1992 VA
audiogram reveals that the veteran has a current hearing loss
disability within the meaning of VA regulations.
In September 1993 the veteran provided sworn testimony at a
hearing before the undersigned member for the Board. The
veteran testified that he was exposed to noise while chipping
paint during service. He also testified that he had tinnitus
during service. Finally, he testified that he sought
treatment for hearing loss within a year of separation from
service. Because of this testimony, the Board remanded the
case to the RO with instructions to attempt to retrieve the
medical records that the veteran alluded to in his hearing
testimony. The veteran provided some medical releases, and
the RO obtained some private medical records. However, none
of these private medical records reveal any complaints,
treatment, or diagnoses, of hearing loss.
The veteran’s testimony is not competent to establish that he
incurred bilateral sensorineural hearing loss during his
active service. While lay testimony is competent to
establish the occurrence of an injury, or to attest to
episodes of difficulty hearing during service, it is not
competent to provide a medical diagnosis. See Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992). Medical diagnosis
and causation involve questions that are beyond the range of
common experience and common knowledge and require the
special knowledge and experience of a trained physician.
Because he is not a physician, the veteran is not competent
to make a determination that his current hearing loss is the
result of his active service over three decades ago rather
than the result of any other intercurrent cause. See
Espiritu, 2 Vet. App. at 495; Grottveit v. Brown, 5 Vet. App.
91, 93 (1993).
The veteran fails to show the required nexus between his
current sensorineural hearing loss and any in-service disease
or injury he incurred. See Caluza, 7 Vet. App. at 506. There
is no medical evidence establishing a link to the veteran’s
active military service. See Rabideau v. Derwinski, 2 Vet.
App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505
(1993). Regulations require a continuity of symptomatology
to link the post-service symptoms to injury during service
when the fact of chronicity in service is not adequately
supported. 38 C.F.R. § 3.303(b) (1996).
The veteran does not meet the second and third elements
required for the claim for service connection for bilateral
hearing loss to be well grounded. See Caluza, 7 Vet. App. at
506; Dean v. Brown, 8 Vet. App. 449, 455 (1995); Slater v.
Brown, 9 Vet. App. 240 (1996).
“A claim for a disability cannot be well grounded unless
there is a medical opinion that links the current disability
to the appellant’s term of service. In the usual case this
nexus would consist of a medical diagnosis of a current
disability that ‘looks backward’ to an in-service disease or
injury and links the two.” Martin v. Gober, No. 96-361 slip
op. at 2 (U.S. Vet. App. September 2, 1997); Caluza, 7 Vet.
App. at 506; Dean v. Brown, 8 Vet. App. 449, 455 (1995);
Slater v. Brown, 9 Vet. App. 240 (1996).
The Board has thoroughly reviewed the claims file. However,
we find no evidence of a plausible claim. Since the veteran
has not met his burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded, it must be denied. See Boeck v.
Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-
grounded, the Board does not have jurisdiction to adjudicate
it).
Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim, but VA may be obligated under 38
U.S.C.A. § 5103(a) to advise a claimant of evidence needed to
complete his application. This obligation depends on the
particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim. Robinette v.
Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation
in Robinette, the veteran has not put the VA on notice of the
existence of any specific, particular piece of evidence that,
if submitted, could make his claims well grounded. See also
Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the
Board concludes that VA did not fail to meet its obligations
under 38 U.S.C.A. § 5103(a) (West 1991).
II. Increased Rating
The veteran has presented a well grounded claim for increased
disability evaluation for his service-connected disability
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
When a claimant is awarded service connection for a
disability and subsequently appeals the RO’s initial
assignment of a rating for that disability the claim
continues to be well grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
Service-connected disabilities are rated in accordance with a
schedule of ratings which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 3.321, and Part 4 (1996).
The disability ratings evaluate the ability of the body to
function as a whole under the ordinary conditions of daily
life including employment. Evaluations are based on the
amount of functional impairment; that is, the lack of
usefulness of the rated part, or system in self support of the
individual. 38 C.F.R. § 4.10 (1996).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates, the criteria
for the higher rating. 38 C.F.R. § 4.7 (1996).
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2 (1996). The veteran’s service medical records
reveal that he had several instances of skin irritation,
including swelling of the hands. He was ultimately diagnosed
with dermatographism.
A March 1984 private medical record reveals that the veteran
had a history of “periodic spotty urticaria.” He was
suffering from generalized pruritus, hives, swelling,
dizziness, dyspnea, and wheezing. He was treated for this
episode with Adrenaline and Benadryl.
In October 1992 a VA examination of the veteran was
conducted. The veteran described having “recurrent episodes
of spontaneous swelling of hands and feet with urticaria and
pruritus over back and chest since the mid-1950s.” The
diagnosis was “intermittent diffuse urticaria (etiology
unknown).”
In July 1996 the veteran submitted a statement from James
Daleo, M.D., a private physician. It stated that the veteran
has a documented history of chronic urticarial skin rash
related to certain chemicals and foods. “At time allergic
reaction can be so severe as to cause sudden drops in blood
pressure light headaches and even syncope. He has been known
to develop associated bronchospasm of the lungs with
subsequent difficulty breathing.”
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran’s disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In March 1997 the most recent VA examination of the veteran
was conducted. The veteran described episodes of swelling of
his hands. He stated that the episodes “now occur
approximately less than one per month. These episodes last
two to three days and are usually not treated.” He also told
the examining physician that he also develops a skin rash on
his face, chest, and back approximately every one to two
weeks lasting three to four days in duration. He has itching
with these rases and the episodes are treated with oral and
topical medication. Physical examination revealed urticarial
papules on the face. Stroking of the back produced a flare
response followed by mild whealing with no associated
itching. The diagnosis was urticaria.
When a disability is encountered that is not listed in the
rating schedule it is permissible to rate under a closely
related disease or injury in which the functions affected,
the anatomical location and the symptomatology are closely
analogous to the condition actually suffered from. 38 C.F.R.
§ 4.20 (1996).
The service connected chronic urticaria is currently rated by
analogy as 10 percent disabling under diagnostic code 7806,
eczema. That rating contemplates exfoliation, exudation or
itching, if involving an exposed surface or extensive area.
The next higher rating of 30 percent contemplates exudation
or itching constant, extensive lesions, or marked
disfigurement. A 50 percent rating, the highest assignable
under this code, contemplates eczema with ulceration or
extensive exfoliation or crusting, and systemic or nervous
manifestations, or exceptionally repugnant. 38 C.F.R. Part
4, § 4.118, Diagnostic Code 7806 (1996). The criteria
warranting a rating in excess of 10 percent have not been
shown in the present case.
Upon review of the rating schedule the Board finds that
diagnostic code 7806 for eczema is the most appropriate code
under which to rate the veteran’s service-connected chronic
urticaria. The evidence is against an increased rating for
the veteran’s urticaria. He has episodic instances of
swelling and skin rash of the face trunk and hands. Itching
accompanies the rash. However, to warrant a 30 percent
rating the criteria contemplates constant itching or
exudation, marked disfigurement or extensive lesions. The
veteran’s instances of itching rash are episodic in nature
and not constant. Moreover, no exudation or disfigurement
has been shown. Also no ulceration, crusting, or systemic
manifestations have ever been shown. The preponderance of
the evidence is against an increased rating for the veteran’s
service-connected urticaria.
(CONTINUED ON NEXT PAGE)
ORDER
Because it is not well-grounded, the veteran’s claim for
service connection for hearing loss is denied.
An increased rating for chronic urticaria is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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